Gulf of Mexico OCS Region's Procedures for CZM Consistency

Pursuant to the CZMA, 16 U.S.C. 1451 et. seq. (Section 307), a State with an approved CZM plan reviews certain OCS activities to determine whether they will be conducted in a manner consistent with their approved plan. This review authority is applicable to activities described in detail in any plan for the exploration (EP) or development (DOCD) of any area that has been leased under the OCSLA and that affects any land or water use or natural resource within the State's coastal zone (16 U.S.C. 1456(c)(3)(B)). The BOEMRE may not issue a permit for activities described in a plan unless the State concurs or is conclusively presumed to have concurred that the plan is consistent with its CZM plan (43 U.S.C. 1340(c) and 1351(d); 16 U.S.C. 1456(c)(3)).

In accordance with the requirements of 15 CFR 930.76(b), the BOEMRE Gulf of Mexico OCS Region sends copies of an EP and DOCD--including the consistency certification and other necessary information--to the designated State CZM agency by receipted mail. (See Section I.B.3.d.(1)(e) for a discussion of environmental information requirements for leases in the Gulf of Mexico submitted for CZM purposes.) If no State-agency objection is submitted by the end of the consistency review period, BOEMRE shall presume consistency concurrence by the State (15 CFR 930.79 (a) and (b)). Similar procedures are followed for amended plans.

If a written consistency concurrence is received from the State, the Region may then approve any permit for activities described in the plan in accordance with 15 CFR 930.63(c). The Gulf Region does not impose or enforce additional State conditions when issuing permits. The BOEMRE can require modification of a plan if the operator has agreed to certain requirements requested by the State.

If the Gulf Region receives a written consistency objection from the State containing all the items required in 15 CFR 930.79(c) before the expiration of the review period, the Region will not approve any permit for an activity described in the plan unless (1) the operator amends the plan to accommodate the objection in accordance with 15 CFR 930.83 and concurrence is subsequently received or conclusively presumed; (2) upon appeal, the Secretary of Commerce, in accordance with 15 CFR 930.120, finds that the plan is consistent with the objectives or purposes of the CZMA or is necessary in the interest of national security; or (3) the original objection is declared invalid by the courts.

Coastal Zone Consistency Appeals

A State determination that a proposed activity is not consistent with its approved program must be made within 6 months, and the State must notify the applicant. States often object on the grounds of insufficient information or that the proposal is inconsistent with a mandatory State program requirement. The State objection must describe (1) how the proposed activity will be inconsistent with specific elements of the management program and (2) alternative measures, if they exist, which, if adopted by the applicant, would permit the proposed activity to be conducted in a manner consistent with the management program. Further, the State must inform the applicant of the right of appeal to the Secretary of Commerce (15 CFR 930.64). The applicant has 30 days from receipt of the objection to file a notice of appeal with the Secretary. The applicant may appeal on two independent grounds. First, the applicant may state that the activity furthers the purposes or objectives of the CZMA or, second, that the activity is necessary in the interest of national security. The notice of appeal must be accompanied by a statement in support of the applicant's position, along with supporting data and information. Copies of the notice and supporting material must be sent to relevant Federal and State agencies. An Ex-PartŠ process applies to appeals to the Department of Commerce. The merits of an appeal cannot be discussed unless all parties are present (NOAA, Office of Ocean and Coastal Resources Management (OCRM) exempted). The Secretary may order a public hearing on his own volition or at the request of an interested party. If the Secretary holds a hearing, the NOAA General Counsel or his designee presides as hearing officer. A Federal Register notice is prepared to inform the public of the hearing. The regulations covering the appeals process are found at 15 CFR 930, Subpart H.